Prem Narain and Ors. vs Ashok Kumar & Anr.

S.U. Khan, J.—Petitioner filed SCC Suit No. 58 of 1984 against respondent No. 1 before JSCC, Jhansi. In the plaint of the suit it was stated that plaintiffs were landlords and defendant was their tenant in the house situate in Hata No 140 inside Orcha Gate Jhansi set the Tent of Rs. 1 per month, since June, 1959 and he had not paid the rent since 141982 inspite of notice of termination of tenancy and demand of rent dated 13 31984 served upon him on 17r31984. Defendant filed written statement denying the title of the landlord and asserting his own ownership. Defendant also filed an application under Section 23 of Provincial Causes Courts Act (PSCC Act in short) in return of plaint for filing before competent Civil Court. The said application was rejected on 19111988. Thereafter, suit was decreed by JSCC, Jhansi on 1821993. Suit was decree for recovery of arrears of rent and eviction. Trial Court found that plaintiff had proved ownership and land lordship and the amount deposited by the tenant for seeking benefit of Section 20 (4) of U.P Act No, 13 to 1972 was insufficient. Against the said judgment and decree tenant filed civil revision (ought to be SCC Revision) No. 40 of 1993. Additional District Judge/Special Judge, Jhansi through judgment and order dated 16111995 allowed the revision and set aside the judgment and decree passed by the Triai Court. The order dated 19111988 rejecting application of the tenant under Section 23 of PSCC Act passed by the Trial Court was also set aside Revisional Court directed for return of plaint under Section 23 PSCC Act and for the said purpose directed the parties to appear before the Trial Court on 25111995. The said order of Revisional Court dated 16111995 has been challenged by the landlord through this writ petition.

The Trial Court for recording the finding of ownership/landlordship in favour of the plaintiffs placed reliance, upon the following evidence facts :

(1) Entry of ownership in favour of the plaintiffs in the municipal records.

(2) Judgment and decree passed by JSCC/Munsif in SCC Suit No. 89 of 1983 filed by the, same landlords against another tenant Gulab in respect of adjoining portion. Trial Court held that even though the said suit had been dismissed however under issue No. 2 plaintiffs had been held to be owners landlords of the said house and they had been permitted to withdraw the amount deposited by the tenant in the suit. The said suit was filed in respect of an accommodation, which was part of Hate No. 240 of which accommodation in dispute in the suit giving rise to the instant writ petition is also a part.

(3) Rent deed Exhibit1 filed by the landlord.

The tenant had pleaded that ancestors of plaintiffs were employees of Nagar Palika hence they had fraudulently got their names entered in the revenue records. Trial Court found that the said entries were not set aside by any competent authority or Court on the objections of the tenant.

The Revisional Court in respect of suit against Gulab held that in the said suit it had been held that the tenant/defendant of the said suit was not liable to eviction on the ground of denial of title. However, the Revisional Court did not say anything regarding finding of the Trial Court that in the earlier litigation by the same landlords against another tenant Gulab the ownership/landiordship of the plaintiffs had been accepted under issue No. 2. Copy of the said judgment has not been annexed along with the writ petition hence no clear finding in that regard may be recorded.

Revisional Court also took into consideration a litigation in respect of third accommodation of the same Ahata being No. 240 which was initiated by the petitioners against Bhagoo tenant of the said accommodation and mentioned in its judgment that on the application of Smt. Bhagoo the tenant of the said accommodation, the Trial Court had directed return of plaint under Section 23, PSCC Act through order dated 18121989. Number of the said suit was SCC Suit No. 193 of 1983, Prem Narain v. Smt. Bhagoo, 2005 (58)'' ALR 650 (SC):2005 (26) AIC 84 (SC). In respect of the said litigation judgment of

this Court passed in Writ Petition No. 34586 of 1992, Bhagoo v. District Judge & Ors., dated 1891992 has been filed. Through the said writ petition Smt. Bhagoo had challenged evictiondecree as confirmed by the Revisional Court. While dismissing her writ petition this Court observed that the amount deposited by Smt. Bhagoo under Section 20 (4) of U.P Act No. 13 of 1972 was short hence decree for eviction was rightly passed.

The most important thing is that the Revisional Court did not say a single word regarding rent deed/note filed by the plaintiffspetitioners before the Trial Court and heavily relied upon by the Trial Court.

Entries in municipal records do not conclusively, prove ownership or landlordship. They are to be considered along with other evidence.

Accordingly, writ petition is allowed. Judgment and order passed by Revisional Court is set aside and matter is remanded to the Revisional Court to decide the revision afresh in the light of the observations made above. It is directed that during pendency of revision, eviction of the tenant shall remain stayed subject to the condition that with effect from April, 2006 onward tenantrespondent deposits rent/damages for use and occupation at the rate of Rs. 10Oper moth before the Revisional Court by 7th of each succeeding month for immediate payment to the landlords petitioners. In case of two defaults stay order shall stand automatically vacated. This direction is being issued in view of judgment of the Supreme Court in Atma Ram Properties v. Federal Motors, 2005(1) JCLR 631 (SC) : 2005 (26) AIC 84 (SC).